The Role and Efficacy of Internal Complaints Committees in Combating Sexual Harassment at the Workplace in India

The Role and Efficacy of Internal Complaints Committees in Combating Sexual Harassment at the Workplace in India

Introduction

The pervasive issue of sexual harassment at the workplace has been a significant concern in India, impinging upon the fundamental rights to equality, dignity, and a safe working environment. The establishment and functioning of Internal Complaints Committees (ICCs) represent a critical institutional mechanism designed to address, prevent, and redress instances of sexual harassment. This article provides a comprehensive legal analysis of the ICC framework in India, tracing its evolution from judicial activism to statutory enactment, examining its constitution, powers, functions, and the challenges it faces. The analysis draws extensively upon landmark judicial pronouncements and the provisions of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (hereinafter referred to as the "POSH Act").

Evolution of the ICC Framework in India

The Vishaka Mandate

The genesis of the formal mechanism to combat workplace sexual harassment in India lies in the landmark judgment of the Supreme Court in Vishaka And Others v. State Of Rajasthan And Others (1997 SCC 6 241). In the absence of specific legislation, the Court, exercising its powers under Article 32 of the Constitution, laid down binding guidelines, drawing from international conventions like CEDAW, to be followed by all employers. A cornerstone of the Vishaka Guidelines was the directive to establish a "Complaints Committee" in every organization. These guidelines stipulated that the committee should be headed by a woman, with not less than half of its members being women, and should include a third party, such as an NGO representative familiar with the issue of sexual harassment, to prevent undue influence (Vishaka And Others v. State Of Rajasthan And Others, 1997; D.S Grewal v. Vimmi Joshi And Others, 2008; Sandeep Khurana v. Delhi Transco Ltd. And Ors., 2006). The guidelines defined sexual harassment broadly to include unwelcome sexually determined behaviour such as physical contact, demands for sexual favours, sexually coloured remarks, showing pornography, or any other unwelcome physical, verbal, or non-verbal conduct of a sexual nature (Vishaka And Others v. State Of Rajasthan And Others, 1997; Apparel Export Promotion Council v. A.K Chopra, 1999 SCC 1 759). The Supreme Court in Apparel Export Promotion Council v. A.K Chopra (1999) further clarified that sexual harassment does not necessarily require physical contact and can include persistent unwelcome advances that create a hostile work environment.

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013

The Vishaka Guidelines served as law under Article 141 of the Constitution until the enactment of the POSH Act in 2013. The POSH Act codified and expanded upon the Vishaka Guidelines, providing a comprehensive legislative framework. The Act mandates every employer to constitute an "Internal Complaints Committee" (ICC) at each workplace with ten or more employees (POSH Act, 2013, S. 4(1)). The Act aims to provide a safe, secure, and enabling environment for every woman, free from sexual harassment, by establishing a statutory redressal mechanism (S. Ranjini v. State Of Tamilnadu, 2017; X v. Internal Committee, Through Neeta Rege, 2023). The enactment of the POSH Act marked a significant step, moving from judicially mandated guidelines to a statutory framework, as noted in cases like Pawan Kumar Niroula v. Union Of India And Others (Calcutta High Court, 2022) and Debjani Sengupta v. Institute Of Cost Accountants Of India And Others (2019).

Constitution and Composition of the Internal Complaints Committee

Statutory Requirements under Section 4 of the POSH Act

Section 4(2) of the POSH Act meticulously outlines the composition of the ICC. It requires:

  • A Presiding Officer who shall be a woman employed at a senior level at the workplace from amongst the employees. If a senior-level woman employee is not available, the Presiding Officer shall be nominated from other offices or administrative units of the workplace. In case no senior-level woman employee is available in other offices or units, the Presiding Officer can be nominated from any other workplace of the same employer or other department or organization. (POSH Act, 2013, S. 4(2)(a)). The importance of the Presiding Officer being of a senior level was also highlighted in Punita K. Sodhi (Dr.) v. Union Of India & Ors. (2010 SCC ONLINE DEL 3087), where the Delhi High Court emphasized that the committee should be headed by an officer sufficiently higher in rank to lend credibility to the investigations, a principle also echoed in Shobha Goswami v. State Of U.P. And Others (2015 SCC ONLINE ALL 9084).
  • Not less than two Members from amongst employees, preferably committed to the cause of women or who have had experience in social work or have legal knowledge (POSH Act, 2013, S. 4(2)(b)).
  • One member from amongst non-governmental organisations or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment (External Member) (POSH Act, 2013, S. 4(2)(c)). The purpose of this external member is to ensure impartiality and prevent undue pressure or influence from senior levels, a requirement stemming from the Vishaka Guidelines (Vishaka And Others v. State Of Rajasthan And Others, 1997; Rashi v. Union Of India And Another, 2020; Punjab and Sind Bank and Others v. Durgesh Kuwar, 2020 SCC OnLine SC 774).

Furthermore, at least one-half of the total Members so nominated shall be women (POSH Act, 2013, S. 4(2), proviso). The term of the Presiding Officer and Members of the ICC shall not exceed three years from the date of their nomination (POSH Act, 2013, S. 4(3)).

Importance of an Independent and Unbiased Committee

The credibility and effectiveness of the ICC hinge on its independence and impartiality. The Vishaka Guidelines, and subsequently the POSH Act, incorporated provisions to ensure this, such as the inclusion of an external member and the requirement for a senior woman employee as the Presiding Officer. In Punita K. Sodhi (Dr.) v. Union Of India & Ors. (2010), the Delhi High Court quashed an inquiry report where the committee's constitution was not consistent with the Vishaka requirements, underscoring that a committee must be constituted in a manner that lends credibility to its investigations. The Supreme Court in Medha Kotwal Lele And Others v. Union Of India And Others (2013 SCC CRI 1 459) also stressed the need for functional Complaints Committees headed by women and including independent members to ensure fairness.

Powers and Functions of the Internal Complaints Committee

Inquiry Process

The POSH Act delineates a structured process for handling complaints of sexual harassment. An aggrieved woman can make a written complaint to the ICC within three months of the incident (or the last incident in a series) (POSH Act, 2013, S. 9(1); Debjani Sengupta v. Institute Of Cost Accountants Of India And Others, 2019). Before initiating an inquiry, the ICC may, at the request of the aggrieved woman, take steps to settle the matter between her and the respondent through conciliation, provided no monetary settlement is made the basis of conciliation (POSH Act, 2013, S. 10). If conciliation is not pursued or fails, the ICC proceeds with an inquiry under Section 11.

For the purpose of making an inquiry, the ICC has the same powers as are vested in a civil court under the Code of Civil Procedure, 1908, when trying a suit in respect of summoning and enforcing the attendance of any person and examining him on oath, requiring the discovery and production of documents, and any other matter which may be prescribed (POSH Act, 2013, S. 11(3)). The inquiry must be completed within 90 days (POSH Act, 2013, S. 11(4)). Crucially, the principles of natural justice must be adhered to during the inquiry. In AURELIANO FERNANDES v. STATE OF GOA (2023 SCC ONLINE SC 621), the Supreme Court quashed dismissal orders based on ICC findings where the appellant was not given adequate time or opportunity to prepare his defense, emphasizing that procedural fairness and natural justice (audi alteram partem) are inviolable in such proceedings. Similarly, challenges regarding procedural fairness, such as the opportunity to cross-examine witnesses, are often raised (SURINDER SINGH v. THE NEW INDIA ASSURANCE COMPANY LIMITED AND OTHERS, 2024 PHHC 37820).

Recommendations and Reporting

Upon completion of the inquiry, the ICC must provide a report of its findings to the employer within ten days (POSH Act, 2013, S. 13(1)). If the ICC concludes that the allegation against the respondent has been proved, it shall recommend to the employer to take action for sexual harassment as a misconduct in accordance with the provisions of the service rules applicable to the respondent or where no such service rules have been made, in such manner as may be prescribed (POSH Act, 2013, S. 13(3)(i)). The ICC can also recommend other actions, including deduction from salary or wages of the respondent for payment to the aggrieved woman or her legal heirs (POSH Act, 2013, S. 13(3)(ii)). The employer is obligated to act upon these recommendations within sixty days (POSH Act, 2013, S. 13(4)).

The ICC is also required to prepare an annual report and submit it to the employer and the District Officer. This report should detail the number of complaints received, disposed of, pending for more than ninety days, awareness programs conducted, and actions taken (POSH Act, 2013, S. 21; X v. Internal Committee, Through Neeta Rege, 2023). This reporting mechanism is vital for monitoring compliance and effectiveness.

ICC as an Inquiry Authority

The Supreme Court in Medha Kotwal Lele And Others v. Union Of India And Others (2013) clarified that Complaints Committees as envisaged in Vishaka would be deemed to be inquiry authorities for the purposes of Central Civil Services (Conduct) Rules, 1964 (CCS (Conduct) Rules) and other similar service rules. This was reiterated in Punita K. Sodhi (2010), where the court noted that any act of sexual harassment is unbecoming of a Government servant and amounts to misconduct. The findings of the ICC, therefore, can form the basis for disciplinary action by the employer (Dr. Vijayakumaran C.P.V . (S) v. Central University Of Kerala And Others (S), 2020 SCC 12 426).

Judicial Scrutiny and Enforcement

Challenges to ICC Constitution and Proceedings

The constitution, proceedings, and findings of ICCs are subject to judicial review. Challenges often arise on grounds of improper constitution of the ICC (Punita K. Sodhi, 2010), bias (S.Selvanagarathinam,IPS v. Disciplinary Authority, 2023), or violations of principles of natural justice during the inquiry (AURELIANO FERNANDES v. STATE OF GOA, 2023; SURINDER SINGH v. THE NEW INDIA ASSURANCE COMPANY LIMITED AND OTHERS, 2024). Courts have intervened where procedural improprieties or substantive errors of law are demonstrated.

Scope of Judicial Review

While courts can review ICC actions, the scope of judicial review is generally limited. As established in cases like Apparel Export Promotion Council v. A.K Chopra (1999), courts typically do not act as appellate authorities over the findings of disciplinary committees, including ICCs. Judicial review is primarily concerned with the legality of the decision-making process, adherence to statutory provisions and principles of natural justice, rather than a re-appreciation of evidence, unless the findings are found to be perverse, based on no evidence, or manifestly arbitrary.

Implementation and Monitoring

Despite the legal framework, effective implementation remains a challenge. The Supreme Court in Medha Kotwal Lele And Others v. Union Of India And Others (2013) expressed concern over the inadequate implementation of the Vishaka guidelines even after 15 years and issued directives to states and union territories to ensure full compliance, including amending service rules and establishing functional Complaints Committees. Public Interest Litigations continue to be filed seeking effective implementation of the POSH Act and the constitution of ICCs in various sectors, including educational institutions and police departments (KREETAMS PRO BONO AND CENTRE FOR LEGAL RESEARCH v. UNION OF INDIA, 2023; JAGJEET SINGH v. UNION OF INDIA AND ORS, 2018).

Challenges and The Path Forward

Despite the robust legal framework, ICCs face several challenges. These include ensuring true independence and impartiality, lack of awareness among employees about their rights and the ICC mechanism, inadequate training for ICC members, and the potential for retaliation against complainants (a concern indirectly highlighted in cases like PUNJAB AND SIND BANK v. DURGESH KUWAR, 2020, which dealt with retaliatory transfers for whistleblowing, including sexual harassment complaints). Ensuring that ICCs function not merely as a compliance formality but as effective bodies for justice delivery requires continuous effort from employers, sensitization programs, and vigilant oversight.

Furthermore, the quality of inquiries, adherence to timelines, and the sensitivity with which complaints are handled are crucial. The role of the external member is particularly important in lending objectivity and expertise to the ICC's functioning. Regular audits of ICC functioning and proactive measures by employers to foster a zero-tolerance environment for sexual harassment are essential.

Conclusion

The Internal Complaints Committee is a vital institution in India's legal architecture for preventing and redressing sexual harassment at the workplace. Evolving from the Supreme Court's proactive Vishaka Guidelines to the comprehensive POSH Act, 2013, the ICC framework provides a structured mechanism for justice. Its effectiveness, however, depends on its proper constitution, adherence to principles of natural justice, the commitment of its members, and the proactive support of employers. While judicial oversight has played a crucial role in shaping and enforcing these standards, the ultimate success of ICCs lies in their diligent and impartial functioning, ensuring that workplaces in India are safe, dignified, and equitable for all women. Continuous vigilance, robust implementation, and a societal commitment to gender equality are paramount to realizing the objectives enshrined in the law.